“Principles governing communicating with testifying experts” – Their development and acceptance

The Principles developed by The Advocates’ Society, Ontario and published June, 2014 have been well received by the judicial system.  And in a short time too.  I reported on these June 11. (Refs 1, 2)  I was pleased with them as a civil engineer retained as an expert often enough.

Following is more information on the development and acceptance of the Principles.

I enquired but wasn’t able to learn how they have been received in Eastern Canada.  I can`t help but think that once they are known to the barristers’ societies in this area they will be quickly accepted here as well.

I later e-mailed Dave Mollica, B.B.A., LL.B. about the Principles.  He is Director of Policy and Practice for the Society.  Dave said, “…the Principles were released only a year ago, but we have received very positive feedback“.  Following is a summary of his remarks: (Ref. 3)

“The Principles were developed following a case from the Ontario Superior Court of Justice (Moore v. Getahun) when the judge suggested that it was inappropriate for counsel to review drafts of expert reports with an expert prior to the filing of the report.

“A Task Force of around 20 members of The Advocates’ Society, all litigators in various areas of practice, was struck to discuss and examine the issue.  Research into the development of expert evidence and the current state of affairs in this regard was conducted.  Task Force members shared their own practices on how they interact with experts during the litigation process.  This led to the drafting of the Principles and the accompanying Position Paper on Communications with Testifying Experts.  Earlier drafts of the Principles were shared with various parties – mainly lawyers who work closely with experts as opposed to experts directly, but I recall we did also consult with the Canadian Institute of Chartered Business Valuators.” (Dave Mollica)

Three significant developments in a year:

  • The Court of Appeal for Ontario endorsed the Principles and appended them to its reasons in the appeal of the Moore v. Getahun case.
  • The Advocates’ Society have incorporated the Principles into the curriculum of it’s relevant educational programming.
  • The Society has received feedback that law firms in Ontario have incorporated the substance of the Principles into their expert retainer letters (sometimes appending the Principles themselves to the letters).

As a civil engineer, I’m enthused about these Principles.  They define my role when I`m serving the justice system and the parties to a dispute.

References

  1. Principles governing communicating with testifying experts, posted June 11, 2015 http://www.ericjorden.com/blog/2015/06/11/principles-governing-communicating-with-testifying-experts-the-advocates-society-ontario-june-2014/
  2. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014 www.advocates.ca http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%20%20Principles%20Governing%20Communications%20with%20Testifying%20Experts.pdf
  3. Personal communication (E-mail), Mollica, David, B.B.A., LL.B., Director of Policy and Practice, The Advocates’ Society, 2700 – 250 Yonge Street, P.O. Box 55, Toronto, ON, Canada  M5B 2L7 www.advocates.ca Tel: 416-597-0243 x.125 Fax: 416-597-1588 E-mail: david@advocates.ca

 

 

 

 

 

“If you measure it you can manage it” – and do thorough forensic engineering, and cost effective civil litigation

The primary task of a forensic engineer is to investigate the physical causes of failures and accidents, and to explain what happened to counsel and the judicial system.

Engineers and civil litigation lawyers do this best – thoroughly and cost effectively, with different measurements.

The built environment, where the failures and accidents occur, is a physical place.  It’s defined by dimensions – measurements.  That’s the language of the built environment like words are the language of the judicial environment.  Even the physical properties of the building materials – e.g., the strength of steel, the drainage characteristics of soil, are defined by measures of one kind or another.

Examples of different measurements – the language of the built environment

  • The property owner wants a structure of some sort, of a certain size and shape and made of certain materials – as defined by different measurements.
  • The design engineer designs the structure – specifies the size, shape and material properties of the components with different measurements.
  • The construction engineer builds the structure – according to the different measurements.
  • The maintenance engineer ensures the structure can be used during its life by fixing or replacing components that break or wear out - according to the original design measurements.

Good project management is a thread running through this design, construction, and maintenance process, made possible by different measurements.

More examples of different measurements

  • Measurement of physical properties by feet and inches,
  • Project schedule by date, days and hours, and,
  • Project cost by dollars and cents.

If a failure or accident occurs during any stage of this process then a lawyer might be consulted by one or more of the parties involved if they thought something went wrong that was not of their doing.

Good case management – would dictate that the lawyer would in turn confer with a forensic engineer about the investigation of the failure or accident.  From this would come an estimate - a measure, albeit very approximate, of the cost of the forensic investigation. (Refs 1, 2 and 3) This estimated cost would assist the lawyer assess the merits of the case and his decision about taking it.

The lawyer’s cost effective management of the case would start at this point.  He would assess if a damage award would cover his legal fees and expenses, the cost of the forensic investigation, and compensation for the parties involved.  The lawyer would take a measure of whether or not the case would be adequately funded.

If the case goes ahead, the forensic engineer would determine the nature of the structure before and after the failure or accident and what took place during the incident.  His work would consist of standard engineering investigations and follow-up investigations, and observations and analyses throughout the process. (Ref. 4)  All supported by measurements of one kind or another.  This measuring would enable a thorough forensic investigation and good project management of the investigation.

If the case goes ahead, the lawyer would monitor the cost of the forensic investigation as it progressed.  He would note the developing costs and how they relate to the estimate. The engineer would assist by estimating and updating investigative costs at each stage as accurately as possible - taking their measure, and reporting these costs as directed by the lawyer.  This monitoring would enable good case management and contribute to cost effective civil litigation.

Counsel, the judicial system and the injured party would be well served if a case were measured and managed like this.

Rather than poorly served as sometimes happens, when an estimate – a measure, of legal plus forensic costs is not made at the start by an experienced civil litigation lawyer and an experienced engineer.  The investigation is stopped mid-investigation because of cost.  Sometimes stopped so completely that the judicial system and the injured party never see relevant technical data that could tip the scales one way or the other.  Because, getting the data to the judicial system in a report is one of the costs that would not have been measured at the start.

“If you measure it you can manage it”.  And manage it well if the civil litigation lawyer and the engineer begin estimating and measuring everything at the start when the merits of the case are being assessed.

References

  1. Difficulty estimating the cost of forensic engineering investigation http://www.ericjorden.com/blog/2013/07/23/difficulty-estimating-the-cost-of-forensic-engineering-investigation/
  2. Why the difficulty estimating the cost of forensic engineering investigation? http://www.ericjorden.com/blog/2013/09/01/why-the-difficulty-estimating-the-cost-of-forensic-engineering-investigation/
  3. Managing the cost of civil litigation http://www.ericjorden.com/blog/2013/09/19/managing-the-cost-of-civil-litigation/
  4. Steps in the forensic engineering investigative process with an appendix on costs http://www.ericjorden.com/blog/2013/07/15/steps-in-the-forensic-engineering-investigative-process-with-an-appendix-on-costs/

“Principles governing communicating with testifying experts”. The Advocates Society, Ontario, June 2014

I was pleased when I came across these guidelines while researching a similar topic on-line in the U.S.  I was looking for more guidance for myself and my clients.  I will briefly tell you about them.

The Principles were developed by lawyers – The Advocates’ Society, Ontario - to guide lawyers and the justice system. (Ref. 1)  The Principles will also guide experts.  To me, an engineer, they appear comprehensive and well founded.  They should be read by all of us: Lawyers, insurance claims managers and consultants, experts, and our clients, and all of us be guided by them.

The Advocates` Society has identified nine (9) principles.  These are stated and then commented on in the document.

As indicated in the document’s overview, it was developed and reviewed by several dozen senior lawyers representing different areas of legal practice and different organizations.  Counting the credits, I can easily imagine at least three (3) dozen.  That’s impressive.  Senior representatives of expert organizations were not consulted.  At least this is not stated.

Experts are well served now by an extensive literature, conferences and workshops.  Included are the publications and meetings by the American Society of Civil Engineers (ASCE) and SEAK, Inc. (Refs 2 and 3)

If the Principles were revised to reflect those developed by organizations like the above, I believe a set of principles could be produced that would serve all of us even better, particularly the justice system.

I hope to comment on the Principles in more detail later.  But, because this document is so relevant to litigation, I’m telling you about it now.  I’m sure many of you know about the Principles but, because they were published recently, I’m also sure many of you don’t.

References

  1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014 www.advocates.ca  http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%20-%20Principles%20Governing%20Communications%20with%20Testifying%20Experts.pdf
  2. American Society of Civil Engineers, Reston, Virginia, U.S. www.asce.org
  3. SEAK, Inc., Falmouth, MA www.seakexperts.com